A petition for judicial review by a 17 year old girl against her being placed in secure accommodation by a children's hearing has been ruled incompetent by the Inner House, which held in any event that the "children" to whom the relevant regulations applied meant anyone under 18 years of age.
Lord President Carloway, Lord Malcolm and Lord Woolman in the First Division gave the decision in refusing an appeal by the girl, L, against the refusal by the Lord Ordinary of her petition seeking declarator that she had been unlawfully deprived of her liberty, reduction or suspension of the relevant decisions and interdict of the Principal Reporter from arranging any future hearings in respect of her.
L had been in the kinship care of her grandmother from an early age, and at 16 had been provided with accommodation by the local authority under s 25 of the Children (Scotland) Act 1995. She was placed in foster care and then children's homes, and was therefore a "looked after" child within s 17(6) of the Act, and being under 18 was a "child" for the purposes of regulations made under s 75, including the Secure Accommodation (Scotland) Regulations 2013. Until the events, in October 2020, which gave rise to her being placed in secure accommodation, she had not been invited with the children's hearing system.
The reporter acted under reg 10 of the 2013 Regulations. A children's hearing made an interim compulsory supervision order, authorising secure accommodation, and directed an application to the sheriff to determine whether grounds were established. L's appeal against the interim order was refused. She brought the present petition.
The Lord Ordinary refused the petition on the basis that it was clear that the relevant legislation could apply to any person under 18 years. L's contention was that the extension to age 18 was because the children's hearing regime was applied to those under 18 if they had been referred to the reporter before they had turned 16.
Lord Malcolm, delivering the opinion of the court, held the petition incompetent. "Statutory mechanisms for challenging decisions of a children’s hearing are set down in the [Children's Hearings (Scotland) Act 2011]", he said. "Such challenges can include issues as to competency or jurisdiction. Even accepting the hypothesis, the petitioner’s submission that she could not invoke these procedures because she is not a child for these purposes is not persuasive. She has been referred to the children’s hearing, and she is the subject of their decisions. Indeed the petitioner has already invoked these procedures in respect of the first [interim order]. This court’s supervisory jurisdiction will not be exercised when alternative remedies are available."
However, the point having been fully argued, Lord Malcolm went on to give the court's view that L's argument was not well founded. There was "no warrant for such a gloss on the clear and unambiguous terms of the provisions under which the [Chief Social Work Officer], the Principal Reporter and the children’s hearing acted".
He continued: "It is clear that the 2011 Act amended s 93(2)(b) of the 1995 Act so that regulations could be made under s 75 (in the event regs 9 and 10) which apply to someone such as the petitioner, namely a person under 18, not the subject of a CSO or similar measure, and who is being looked after by a local authority under s 25 of the 1995 Act."
The definition of a child in s 199 of the 2011 Act was not exhaustive for all proceedings before a children's hearing. L was a child for the purposes of the regulations and could lawfully be placed in secure accommodation.